Scalia’s favorite opinion? You might be surprised

Speaking to law students at Santa Clara University this week, Supreme Court Justice Antonin Scalia was asked which past court opinion he most admired. He paused for a few seconds, which allowed time for speculation by those of us who thought we had the court’s most outspoken conservative all figured out.

Would it be Citizens United? Bush vs. Gore? One of the dissents in Roe vs. Wade?

Nope. It was Justice Robert Jackson’s dissenting opinion in the Korematsu case.

Fred Korematsu, a native-born American whose parents were from Japan, lived in San Leandro and refused to leave in 1942 when military officials ordered all Japanese-Americans on the West Coast to submit to evacuation and transportation to internment camps. He was convicted of disobeying the order, and when his case reached the Supreme Court, the justices — eight of them appointed by President Franklin D. Roosevelt — upheld his conviction, and the military edict, by a 6-3 vote in December 1944.

Jackson, appointed to the court by FDR in 1941 after serving as his attorney general, dissented. It was not the most fiery dissent in the case — Justice Frank Murphy called the majority ruling the “legalization of racism” and acceptance of the same “abhorrent and despicable treatment of minorities” practiced by America’s enemies in World War II. But Jackson, who had taken part in a unanimous decision the previous year that upheld a curfew on Japanese-Americans, evidently decided that some wartime orders went too far, and spoke from the heart.

“Here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign,” he said.

The court, Jackson said, has neither the authority nor the competence to second-guess military decisions. But by upholding Korematsu’s criminal conviction, he said, “the court for all time has validated the principle of racial discrimination in criminal procedure and of transporting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

A year later, President Harry Truman chose Jackson as the chief U.S. prosecutor at the Nuremberg war crimes trials. He returned to the court in 1946 and remained until his death in 1954. While the court’s Korematsu ruling remains on the books as a legal precedent, his conviction was set aside in 1983 by a federal judge in San Francisco, Marilyn Hall Patel, who cited new evidence that military officials and the government had misled the court about the supposed seurity threat posed by Japanese-Americans.

Scalia is not known as a civil libertarian — he generally votes to uphold actions by police and prosecutors, not to mention his disdain for rulings on privacy, abortion, and the rights of gays and lesbians. But some of his opinions have called for limits on executive powers, such as a 2004 dissent that argued the Bush admninistration had no authority to hold a U.S. citizen indefinitely as an enemy combatant, but should have to charge him with a crime or let him go.

He told the Santa Clara students that he admired Jackson’s opinion because of his writing style, and because Jackson had become a lawyer, and later a justice, without ever attending law school. And regarding the wartime internment of Japanese-Americans, Scalia said, “It was nice to know that at least somebody on the court realized that that was wrong.”